Tann v. Fisher

276 F.R.D. 190, 2011 U.S. Dist. LEXIS 73611, 2011 WL 2678593
CourtDistrict Court, D. Maryland
DecidedJuly 8, 2011
DocketNo. PWG-11-121
StatusPublished
Cited by14 cases

This text of 276 F.R.D. 190 (Tann v. Fisher) is published on Counsel Stack Legal Research, covering District Court, D. Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tann v. Fisher, 276 F.R.D. 190, 2011 U.S. Dist. LEXIS 73611, 2011 WL 2678593 (D. Md. 2011).

Opinion

MEMORANDUM AND ORDER

PAUL W. GRIMM, United States Magistrate Judge.

This Memorandum and Order addresses Defendant Corporal Thomas Fisher’s Motion to Dismiss Pursuant to Rule 12(b)(5) for Insufficient Service of Process, ECF No. 6; and Plaintiff Michael Eugene Tann’s Response to Defendant’s Motion, ECF No. 9. Defendant has not filed a reply, and the time for doing so has passed. See Loe. R. 105.2. A hearing is not necessary. See Loe. R. 105.6. For the reasons stated herein, Defendant’s Motion is GRANTED. This Memorandum and Order disposes of ECF Nos. 6 & 9.

I. BACKGROUND

Plaintiff brought suit in this Court, alleging that, while Plaintiff was taking pictures that Defendant perceived were of him, Defendant approached Plaintiff. Compl. ¶ 1, ECF No. 1. According to Plaintiff, Defendant asked him, “ ‘Am I bothering you?’ ” and “ ‘Why are you taking pictures of me?’ ” Id. Plaintiff claimed that Defendant “became extremely angry” when Plaintiff initially did not respond, and Plaintiff asked “‘How do you know the pictures are of you?’ ” Id. Plaintiff added that he then told Defendant, “ ‘you know who I am, that’s why you are harassing me.’ ” Id. ¶ 2. Defendant arrested Plaintiff, id. ¶ 4, and according to Plaintiff, “engaged in a malicious prosecution of Plaintiff by bringing false charges against Plaintiff and carrying them through by going to trial on March 3, 2008, id. ¶7. Plaintiff claimed that Defendant violated his “Fourth Amendment right to not be subjected to unreasonable searches and seizure” and “committed tortuous [sic] acts of brutality, first degree assault, false imprisonment, kidnapping, and filing a false report ... against Plaintiff.” Id. ¶ 8.

II. ATTEMPTED SERVICE OF PROCESS

Plaintiff filed his Complaint on January 13, 2011, and had 120 days thereafter to effect service of process. Fed.R.Civ.P. 4(m). Rule 4, “Summons,” provided Plaintiff with various options for serving Defendant, an individual, with a summons:

Serving an Individual Within a Judicial District of the United States. Unless federal law provides otherwise, an individual — other than a minor, an incompetent person, or a person whose waiver has been filed — may be served in a judicial district of the United States by:
(1) following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made; or
(2) doing any of the following:
(A) delivering a copy of the summons and of the complaint to the individual personally;
(B) leaving a copy of each at the individual’s dwelling or usual place of abode with someone of suitable age and discretion who resides there; or
(C) delivering a copy of each to an agent authorized by appointment or by law to receive service of process.

Fed.R.Civ.P. 4(e). The state law, Md. R. 2-121(a), provides:

Service of process may be made ... (1) by delivering to the person to be served a copy of the summons, complaint, and all other papers filed with it; (2) if the person to be served is an individual, by leaving a copy of the summons, complaint, and all other papers filed with it at the individual’s dwelling house or usual place of abode with a resident of suitable age and discretion; or (3) by mailing to the person to be served a copy of the summons, complaint, and all other papers filed with it by certified mail requesting: “Restricted Delivery — show to whom, date, address of delivery.” Service by certified mail under this Rule is complete upon delivery.

Plaintiff did not deliver a copy of the summons and complaint to Defendant personally. See Fed.R.Civ.P. 4(e)(1), (2)(A); Md. R. 2-121(a)(1). Nor did he leave a copy at Defendant’s dwelling with another resident “of [192]*192suitable age and discretion.” See Fed. R.Civ.P. 4(e)(1), (2)(B); Md. R. 2-121(a)(2). Nor did he mail the summons and complaint to Defendant via certified mail. See Fed. R.Civ.P. 4(e)(1); Md. R. 2-121(a)(3). Rather, Plaintiff enlisted the U.S. Marshals to serve the summons and complaint at Defendant’s place of employment, Towson University Police Department.

According to Plaintiff, “the Towson University mail pick-up driver, Mike Miller-son,” received the summons, “brought [it] back to Towson University’s post office, and ... sent [it] to the Towson University Police Department.” PL’s Resp. 2. But, “[s]ervice of process at a defendant’s place of business does not satisfy the requirements of Rule 4(d)(1) [now Rule 4(e)(2) ].” Quann v. Whitegate-Edgewater, 112 F.R.D. 649, 655 (D.Md.1986) (certified mailing to partnership of which individual defendant was a partner did not constitute proper service of process on individual defendant). Further, service to an individual who has not been authorized to receive service of process at a defendant’s place of business does not constitute “delivering a copy of each to an agent authorized by appointment or by law to receive service of process,” Fed.R.Civ.P. 4(e)(2)(C), because “ ‘an agent ... must be one who is authorized either by appointment or by law to receive service.’ ” Quann, 112 F.R.D. at 655 (quoting Gipson v. Twp. of Bass River, 82 F.R.D. 122, 125 (D.N.J.1979) (citing Fed. R.Civ.P. 4(d)(1))). Indeed, “ ‘[t]he cases dealing with agency by appointment indicate that an actual appointment for the specific purpose of receiving process is normally expected.’ ” Id. (quoting Gipson, 82 F.R.D. at 125). Plaintiff has not shown or even suggested that Mr. Millerson was Defendant’s agent. Thus, it appears that Plaintiff did not effect service of process properly by any of the mechanisms provided in Rule 4(e)(2)(A), (B), or (C), or Md. Rule 2-121(a)(l), (2), or (3), and well over 120 days have passed since Plaintiff filed his complaint.

III. SUFFICIENCY OF SERVICE OF PROCESS

Fed.R.Civ.P. 12(b)(5) provides that a defendant may assert insufficient service of process by motion as a defense to a claim for relief. On that ground, Defendant filed his Motion to Dismiss. Def.’s Mot. 1. “If service is contested, the ‘plaintiff bears the burden of establishing the validity ... pursuant to Rule 4.’” Shlikas v. SLM Corp., No. WDQ-09-2806, 2011 WL 2118843, at *2 (D.Md. May 25, 2011) (quoting O’Meara v. Waters, 464 F.Supp.2d 474, 476 (D.Md.2006)).

In his Response, Plaintiff offers numerous variations on the theme that he properly effected service of process.

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Cite This Page — Counsel Stack

Bluebook (online)
276 F.R.D. 190, 2011 U.S. Dist. LEXIS 73611, 2011 WL 2678593, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tann-v-fisher-mdd-2011.